QUESTION
A federal trademark was just cancelled for failure to renew. Can I now trademark the same or similar name?
Asked on Jan 20th, 2014 on Intellectual Property - Florida
More details to this question:
I have a brewery that has almost the exact same name as a brewery in another part of the country. The other brewery used its name first and formerly had a federal trademark for its name. However, the trademark was recently cancelled because they failed to file a renewal of some kind. Is the trademark to that name now up for grabs or do they still have priority even though their TM was cancelled?
1 ANSWER
Intellectual Property Attorney serving Manchester, NH
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Hayes Soloway P.C.
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US trademark law is all about consumer confusion. If the other brewery is still functioning and some of your consumers believe there is a relationship between you and the other brewery, that confusion could restrict your ability to register your trademark. Even if you registered the trademark, the courts may still view you as the junior user (second user) in some geographies within the US and prevent you from enforcing your trademark against this other brewery (who would be the senior user). It is also possible the other brewery could revive their abandoned registration. Without having all the facts at hand (and analysis of those facts would take more time than should be expected for free information) it is hard to suggest how to proceed.
Answered on Jan 21st, 2014 at 9:23 AM